R. v. Conway-McDowall, 2019 Edmonton Queen’s Bench – Re-Election As To Mode Of Trial After Direct Indictment Available Without Crown Consent


Accused was charged with sexual assault and interference. Crown preferred a direct indictment, which resulted in a deemed jury election under s. 565(1) CC. Later, accused served notice of re-election to judge alone. Crown argued re-election was not possible as s. 561(2) CC applied; thus defence could only re-elect as of right at least 14 days before the first trial date.

Held: Right of re-election at any time following direct indictment.

Amendments to the Criminal Code in 2008 removed the requirement for consent of the prosecutor for re-election after a direct indictment, and were intended to promote trial efficiency and respect the accused’s right to choose the mode of trial. “When I apply the modern approach to statutory interpretation, I conclude that s. 561(2) has no application to an accused person’s re-election following a direct indictment. As a result, I conclude that an accused person who re-elects to Judge alone pursuant to s. 565(2) may do so without seeking the consent of the Crown,” at any point in time.

C. Mitchell – Defence Counsel